Judge Lets Cumulus Keep Witness Identities Sealed In Nielsen Antitrust Fight.

Cumulus Media has won a key procedural ruling in its antitrust lawsuit against Nielsen, with a federal judge agreeing to keep the identities of third-party radio companies sealed amid concerns about potential retaliation.

U.S. District Judge Jeannette Vargas ruled that the names and employment positions of non-party declarants supporting Cumulus’s request for a preliminary injunction may remain redacted, granting the broadcaster’s motion for reconsideration of an earlier order. The court found that “sufficient countervailing factors” outweighed the presumption of public access, citing “the privacy interests” of individuals and companies that support Cumulus Media in its claim against Nielsen. Vargas acknowledged their “susceptibility to economic retaliation” and concluded that such “narrowly tailored redactions” will have little bearing on the merits of the case.

Cumulus had argued that the witnesses it is relying on — described as people who work for “radio stations and media companies” that rely on Nielsen data — face real economic risks if their identities were disclosed.

“Nielsen’s monopoly over the radio ratings data enables it to harm any adversaries, including those who testify against it in court,” Cumulus suggested, adding, “The third-party declarants in this case are businesses who also face the threat of retaliatory oppressive pricing and contract terms for radio ratings data.”

Cumulus went on to tell the court that some third parties have threatened to remove their declaration from the case in its entirety, over concerns about retaliation by the ratings company, noting that affected businesses “cannot get national radio ratings data elsewhere.” Cumulus added that could have impaired the court’s ability to reach a resolution.

The ruling comes as Cumulus continues to press claims that Nielsen’s pricing and contracting practices are anticompetitive. In an antitrust lawsuit filed in October, Cumulus asked a federal court in New York to block Nielsen from implementing a tying policy that conditions access to national radio ratings data on the purchase of separate local radio ratings data. Cumulus calls it a “textbook abuse of monopoly power” that harms competition by preventing radio stations from freely choosing the local radio ratings data providers they want. The lawsuit cites a 36% increase in Westwood One’s national ratings data in 2022, along with consistent subsequent price hikes tied to Nielsen’s “tying policy” that links national and local rating products.

In a declaration filed earlier this month, Cumulus EVP and Westwood One President Collin Jones disputed arguments raised by Nielsen in a Dec. 1 filing regarding the broadcaster’s financial condition and contract negotiations. Jones stated that Nielsen previously provided “detailed breakdowns of the products and services it offered on a market-by-market basis” during earlier negotiations, allowing Cumulus to make informed purchasing decisions. He said that in more recent talks, Nielsen “declined to provide updated” market-level pricing, instead offering “blanket proposals that did not disclose the underlying pricing for individual markets or services.”

Jones told the court that without that transparency, Cumulus “cannot assess which markets are sustainable, cannot plan for the future,” and cannot operate responsibly under the proposed terms.

But Nielsen has defended its practices, telling the court that Cumulus isn’t fighting a monopoly, but rather waging a “lawfare” campaign by using antitrust claims as a weapon to win better pricing in what the ratings giant insists is “nothing more than a contract dispute.”

Nielsen has also told the court that it has presented Cumulus with multiple renewal options — including stand-alone national and local data products without the alleged “tie” that triggered the lawsuit — and even offered to extend the existing agreement beyond its Dec. 31 expiration.